12th Greek Australian Legal and Medical Conference
Samos, Greece 2009

The Chamberlains: A Palpable Miscarriage of Justice

The Hon. J.S. Winneke A.C., Q.C.

I a ppreciate this opportunity to participate in the medical/legal conference; and I apologize (for reasons already given) for my non attendance. It is my misfortune that I am not basking on the beaches of Samos with other conference conferees.

I have a problem for which you must forgive me. I have not practiced law in any shape or form (unless you include the AFL Tribunal) since July 2005. Accordingly I am unfamiliar with current trends, issues and statutes. However I suspect that even in this modern age of technological excess, there is still room for the occasional miscarriage of justice. Indeed, it is a miscarriage of justice which occurred in the 1980’s, (involving law, medicine and science) that I wish to discuss with you at this conference. It was a miscarriage which arose from circumstances which befell Lindy and Michael Chamberlain at the Ayers Rock camping ground in 1980. The Chamberlains had driven from home in North Queensland to ‘the Rock’ with their 3 children; Aiden (aged 7) Reagan (aged 4) and newborn baby Azaria, about 10 weeks old. Their lives were to be irrevocably changed forever, when on the 20th August, Azaria disappeared in the following circumstances.

It was about 8.00pm on 20.8.1980 when Azaria disappeared from the camping ground at Ayers Rock. For about ¾ hour before she disappeared, Mrs Chamberlain had been nursing her at a B.B.Q. which was some 20 metres from their tent. That tent, although small, accommodated the 5 Chamberlains; Michael, Lindy and the 3 children. Azaria’s bassinett was in the rear corner of the tent.

The Chamberlains had, at about 6.30pm, returned from watching the sun set over the Rock. Before they set out for the Rock, Lindy had bathed the 2 boys and put them into their pyjamas. She had also fed Azaria who was very small (at 10 weeks) and under 9 pounds in weight. When they returned from the Rock, Mrs Chamberlain had put Reagan down t sleep in the tent. She and her husband then when from the tent to the B.B.Q. area (about 20 metres) to get dinner. Aiden went with them and Mrs Chamberlain carried Azaria who was still ‘unsettled’. At the B.B.Q. they met a Mr and Mrs Lowe from Tasmania, whom they did not know. They struck up a conversation. Mrs Lowe was later to say that Mrs Chamberlain was ‘in a composed frame of mind’. They talked casually about their respective children whilst their husbands prepared dinner. Azaria went to sleep in her mother’s arms shortly before 8.00pm. Mrs Chamberlain then announced that she was going to put Azaria into her bassinett, and asked Aiden to accompany her so that she could put him to bed as well. She left with Aiden. Within a short time (described by Mrs Lowe as ‘5 to 10 minutes), Mrs Chamberlain returned to the B.B.Q. area carrying a tin of baked beans, and accompanied by Aiden. Mrs Lowe described Mrs Chamberlain’s demeanor as ‘the same composed frame of mind’ in which she had been when she had left to put Azaria to bed. Mrs Chamberlain remarked that Aiden had ‘hollow legs’ and she took him to the B.B.Q. where there was a can opener which she used to open a tin of baked beans. Mrs Lowe, who was then standing with Mr Chamberlain and Aiden (closer to the Chamberlain tent than Mrs Chamberlain) said that she heard a ‘short harp cry’ from the Chamberlain tent. Mr Chamberlain and Aiden also heard it. They told Mrs Chamberlain who said she would go and check. She put down the can of baked beans and headed for the tent followed by Aiden. As she approached, a dog emerged from the tent. She said she ‘thought it had something it its mouth’ which in the light she could not identify.

The split seconds which followed these events have been the subject of much evidence, most of it consumed by a microscopic and detailed analysis by the N.T. Crown authorities of Mrs Chamberlain’s actions and thought processes in an endeavour to suggest that she was lying and embarking upon a fabricated story designed to conceal ‘the real truth’, namely that she had – on her short visit to the tent and before returning to the B.B.Q. – feloniously disposed of Azaria and concealed her body in a way which no one has thereafter been able to identify. According to the Northern Territory Crown officials, she confided the ‘real truth’ at some unidentified time to her husband Michael, who thereafter chose to protect his wife; thus becoming an accessory to her crimes.

What happened after Lindy claimed to have seen the dog emerging from the tent appears not to have been subject to doubt. Mrs Chamberlain rushed into the tent, found the bassinett empty and the baby’s blankets strewn throughout the tent. Having found the tent in disarray and Azaria missing, she yelled ‘That dog has got my baby’.

Her cry brought her husband the Lowes running to the tent. They found Lindy in a distressed state pointing to the dark sandhill behind the tent. Mr Chamberlain and Mr Lowe ran off in an endeavour to find the missing child. Mrs Lowe remained behind to comfort Lindy. Aiden said to Mrs Lowe:

‘That dog has got my bubby in its tummy’.

Within minutes, people from the campsite were everywhere. The Senior Ranger of the National Park (Derek Roff) arrived to take control of the search. Roff was a man of long experience in the National Park; and was very familiar with the dingoes and their habits. Unbeknown to the Chamberlains, Roff was at the time becoming quite concerned with the habits of he dingoes – and particularly about the fact that they were brazenly strolling in the campsite in search of food which the campers – contrary to the rules – were providing to them. Thus, the dingoes instinctive fear of humans had gradually begun to erode. Indeed the fears of the Senior Ranger, had only 2 weeks before, come to a head when a dingo had dragged a 3 year old child for some 20 metres from the Landrover in which she was sitting before her cries alerted the Rangers. Roff had in fact asked for permission to shoot the dingoes. That permission had been refused.

When, therefore, Roff arrived at the campsite to investigate Azaria Chamberlain’s disappearance he was not surprised by what he was told. He was later to tell the Royal Commission (Justice Morling) who was appointed to inquire into the Chamberlain’s convictions, that the events which the Chamberlain’s related to him on the night of 20.8.1980 had simply fulfilled the fears which he had harboured.

Roff obtained from Mrs Chamberlain the details of Azaria’s disappearance. Within a matter of minutes 300 hundred people were out in the sandhill looking for Azaria. There was little hope that the child would be found alive. The temperature was near freezing point. Roff had with him an experienced Aboriginal tracker (Nui Minyintiri). He was able to pick up the tracks of a large dingo heading up the sandhill behind the tent. Those tracks went up the sandhill and turned right (or west) along the ridge of the sandhill. At intervals, the tracks were associated with impressions in the sand where it appeared that the dog had laid down what it was carrying. The impressions had an imprint of a knitted fabric. These tracks led Roff to tell the ultimate Royal Commission that he and Nui had no doubt that they were following the dingo which had the baby. Roff also told the Royal Commission that he was quite convinced that Mrs Chamberlain’s account of events was true. In this he was supported by the Aboriginal tracker. Likewise, the large number of ‘eye witnesses’ or campers who were present and with the Chamberlains had no doubt the Chamberlains had lost their child in tragic circumstances.

Against the background of all this material and the off-quoted opinions of those eye witnesses who were at the campsite on this night, one might be excused for thinking that it might be nigh on impossible to make out a case against the Chamberlains which would lead a jury to convict them of murdering their daughter and even more so, would enable ‘their convictions to ‘stick’ the appellate processes up to and including the High Court of Australia. Yet, this occurred. Why? It is difficult to deny that this consequence was largely the result of the importation of ‘experts’ gathered together by the N.T. Crown, and upon whose evident the N.T. relied to make out a case against the Chamberlains.

There was an initial inquiry which occurred following the disappearance of Azaria during the course of which Coroner Barritt heard mainly from witnesses who had been at the campsite on the night when Azaria disappeared. The Coroner – in the face of the evidence, found that Azaria had been taken by a dingo. Because of the interest which had been generated by Azaria’s presumed death – and the circumstances in which it had occurred – Coroner Barritt delivered his findings on national television. Although the death of Azaria and the circumstances in which it was alleged to have occurred had aroused widespread interest throughout Australia, the fact that the Coroner had chosen to deliver his findings in public – was regarded by some in N.T. as ‘provocative’ and no doubt had a significant interest on the events which followed.

Almost a year after Azaria’s disappearance, her clothes (or some of them), which had been found at the base of the rock about a week after her disappearance were taken to London with the authority of the N T Government and there were examined by a well credentialed pathologist (Professor Cameron), who examined the clothes and reported that, in his view, the blood stains on the clothing indicated that the child had died from a cut throat, and further, that the stains revealed the outline in blood of a small adult human hand. He went further and proffered his view that the condition of the clothing was such as to exclude any ‘canine involvement’. Further, it was his opinion that the staining on the clothing had been buried.

Such was the nature of these opinions that the entire case was reopened and further investigations occurred at the instigation of the N T Government, during which further expert opinions were received. It was at this stage that the procedures which were designed to determine the cause of Azaria’s death began to degenerate. The car which the Chamberlains to Uluru was seized. Thereupon a forensic scientists from the NSW Health Department was asked by the N.T. Government for blood, and likewise to test certain items found in the car, including a pair of nail scissors, a chamois, a camera bag and a towel. The NSW forensic scientist revealed that her testing procedures demonstrated the presence of foetal blood on a widely distributed basis throughout the car, on the front passenger seat, under the dashboard and on the floor. Furthermore, the view was expressed that foetal blood was detected on the chamois, on the towel, on the chamois container, on the camera bag and on the scissors. Further, the forensic scientist detected what she called an ‘under-dash spray of foetal blood’ on the metal frame holding in position the dashboard of the car. ‘Foetal blood’ is blood of a newborn infant which exists until the age of about 6 months.

The baby’s clothing was also submitted by the N T Government to a textile expert. He expressed the opinion that the damage to the clothing was inconsistent with mastication by a dog, rather – so he said – the damage was consistent only with damage caused by a pair of sharp scissors. This expert was later to concede that he had no real experience or knowledge of the carnavassial teeth of a dingo or their capacity to cut fabric.

Thus, these three expert witnesses had proffered opinions which formed the basis of a case against the Chamberlains that they had murdered their young daughter. No one sought to proffer a reason as to why Lindy Chamberlain had suddenly changed from an adoring and loving young mother to a mother who was prepared to cut the throat of her youngest child, and was then prepared to falsely claim that she had carried off by a wild dog.

These three experts formed the basis of the Crown case; namely that during the short period when Mrs Chamberlain had left the .B.B.Q with Azaria (accompanied, as she was by Aiden) she took Azaria to the car, had there cut the child’s throat with a par of nail scissors, held the baby whilst it died , then concealed the body in the camera bag; had subsequently cleaned the car with her husband’s aid, had then buried the child in the sandhill behind the tent, thereafter (at some unidentified time) exhumed the body, removed the clothing, cut it with the nail scissors to simulate dog damage; and thereupon ‘planted’ the damaged clothing in the position where it was found week later near the Rock (many miles from the campsite).

The fact that this case was made out to the satisfaction of the jury is perhaps, an indication of the weight which juries will give to expert opinion evidence; notwithstanding some glaring improbabilities which may be implicit in it. First, no reason or motive for the crime could ever be ascribe by the Crown; no weapon could ever be identified with certainty; the time span available to Lindy Chamberlain to carry out the suggested crime would have rendered it barely possible that she could have done what was alleged against her. In addition, Lindy’s demeanor at relevant times meant that she would have to have been a consummate actress to have killed her child and then behave in the manner described by the people with her on that night. Furthermore, the acceptance of the Crown case required the jury to reject as mistaken the evidence of those who heard the baby cry out; and the evidence of the senior Ranger.

Such can be and apparently was the influence of the expert witness evidence.

It was not until well after the trial and appellate processes had exhausted themselves (and Lindy had gone to jail) that the entire fabric of the evidence given by the expert witnesses was demonstrated to be plainly erroneous or, at least, open to serious doubt. It was the undercurrent of dissatisfaction which existed in relation to the expert evidence given at the trial which provided the impetus for the establishment if a Royal Commission. The Royal Commissioner was Mr Justice Morling of the Federal Court.

The Morling Commission sat in various places during 1986 and 1987. The evidence given to the Royal Commissioner was extensive. However, it revealed just how unreliable and, in parts, how erroneous the expert testimony given at the trial had been. At the end of the day, the Royal Commissioner made some very critical comments. Inter alia he said (at P.342 of his extensive Report):

‘It follows from what I have written that there are serious doubts and questions as to the Chamberlains guilt and as to the evidence in the trial leading to their convictions. In my opinion, if the evidence before the Commission had been given at the trial, the trial Judge would have been obliged to direct the jury to acquit the Chamberlains on the ground that the evidence could not justify their convictions.’

The Commission gave extensive and eloquent reasons for the conclusion to which he had come. He identified the fact that the evidence upon which the jury would have relied to conclude guilt was the expert opinion evidence given at trial by the British pathologist, by the forensic scientist from the NSW Health Commission; and by the textile expert. Of these witnesses, the most damaging evidence (from the Chamberlains’ point of view) was the evidence of the witness form the Health Commission of NSW.

‘On evidence which was before him, Justice Morling concluded that the evidence led at the trial suggested that the Chamberlains’ car was ‘awash with blood’. He said that this impression was created by misleading evidence from the NSW Health Commission’s scientist which was based on the false proposition that ‘a presumptive test for blood using othotolodine could be confidently interpreted as blood’. No one of the experts called before the ‘Morling Commission’ believed that the so call ‘Otol. Test’ could prove the presence of blood, and all of them denied that it could.

Perhaps the most significant of the false opinions expressed during the Chamberlain trial was the opinion given by the NSW Health Commission expert that an apparent ‘spray formed’ substance on the underside of the metal support of the dashboard (on the passenger side) was ‘a spray of foetal blood’. This evidence conveyed the picture to the jury of a ‘helpless Azaria’ being held by her mother in the front passenger seat whilst her throat was cut. Proper examination of this material by chemical experts advising Justice Morling demonstrated that this ‘spray’ was in fact ‘sound deadener’ which was sprayed under the front wheel arches of these cars during manufacture. The was applied by a pressure gun during the course of manufacture and found a ‘drain hole’ on its way onto the under-dash plate in the wheel-arch which is used to convey accumulated water under the bonnet through the wheel arch onto the road. As the Commission was to ear, a large number of these types of cars displayed the same ‘spray pattern’ on their under-dash frames that the Chamberlain jury was invited to conclude was a ‘spray of foetal blood’.

The evidence given before the Morling Inquiry gave the ‘Commissioner the opportunity to unravel the material errors in the expert evidence placed before the trial jury. On that evidence the Commissioner found, and was entitled to find on the material before him:

  1. That it was not possible to determine from the stains on Azaria’s recovered clothing that she had died from a cut throat. Indeed it was highly likely that the bleeding was of a ‘post mortem character’ rather than ‘ante-mortem’.
  2. There were no blood stains on the clothing which represented human handprints’ anything like them.
  3. The so-called ‘blood-spray’ under the dashboard was not foetal blood but ‘sound deadener’.
  4. There was minimal blood in the car; what there was, was not foetal and was quite consistent with what one would find in any family car.
  5. There was no foetal blood on the scissors, the chamois, the towel or the camera bag and that it was more probable than not that the scissors were not even in the car at the Rock.

The Commissioner, himself, was at a loss to understand how such a body of unreliable evidence could be presented in a superior court on such serious charges. It seems to me that it was implicit in his Report that he regarded certain evidential principles as non-negotiable:

(a) The expert witness must be absolutely true to himself or herself and to the discipline which he or she proposes to be expert in: The obligation incorporates a number of subsidiary obligations:-

‘The expert must maintain a stance completely independent from that being taken by the party seeking his opinions. To do otherwise damages the cause of his or her client. It also harms his own reputation and that of the Association to which he belongs.’ In the course of making his findings, Morling J recommended that thought be given to establishing a central and independent national Forensic Science Institute to establish ‘uniform and reliable practices throughout Australia’.

(b) Secondly the Commissioner reported that it is essential that the expert witness, when called upon to testify, is thoroughly self-satisfied that he or she is capable and qualified to give the opinion sought. Experts who give evidence on matters upon which they are unqualified to express opinions are ‘run to ground’. In the Chamberlain’s case, an expert gave evidence at the trial that hairs found on the child’s clothing and in the tent were ‘probably cat hairs’. During the Commission, he said that he was prepared to agree with the view of a more qualified person that they were definitely ‘dog hairs’. Unless a witness is prepared to be thoroughly frank about his qualifications for expressing opinions, it will be evident that material will find its way into a case which should not be there.

The overall impression which I received from the Chamberlain case was the complete vulnerability of the legal processes to inexpertly formed opinion evidence. Of course one would like to believe that the law’s processes are sufficiently astute to provide a guarantee that the liberty of the subject will not be jeopardized on account of ill-formed opinion evidence. It is obvious that this is not so. I would like to think that scientific advances, such as ‘genetic fingerprint ting’ and DNA processing will put an end to the miscarriages of justice like those suffered by the Chamberlains. I have a strong impression that, unless due care and diligence is given, mistakes will continue to occur and that those mistakes will become even more difficult to correct with advanced technology.

The upshot of the Chamberlain Inquiry

The report of the Commission was tabled in the N T Parliament. The
Chamberlains, on 2.6.1987 received ‘Pardons’ (which only relieve the penalty,
but do nothing about the convictions)

On 24 September 1987, The N T Parliament introduced into the Territory’s Criminal Code Sect. 433Awhich permitted the CCA of the N T to quash the convictions recorded in circumstances where there is no evidence to support them. Such provisions are common place in the States; but had not until then found their place in the Territory Criminal Code.

On 15.9.1988 the N T Court of Criminal Appeal quashed the Chamberlain convictions. In the course of doing so, Nader J (giving the judgment in court said:

‘It is not this Court’s function to establish innocence because in the absence of a conviction innocence is presumed: no finding is required. If the accused is not found guilty the presumption of innocence continues. So it is here. I have expressed the opinion that doubt exists as to the guilt of (the) Chamberlains. I would express that doubt as a grave doubt. The doubt has arisen as a result of considering fresh evidence; in particular the finding of the (Morling) Commission …. The convictions, having been wiped away, the law of the land holds the Chamberlains to be innocent’.

In 1991, The N T Government appointed Mr Justice Morling to act as an assessor to determine and to recommend to the N T Government an amount of money which ought to be payable by the N T Government as compensation to the Chamberlains. This was ultimately done. However, no payment of compensation was ever able to right the injustice which had befallen the Chamberlains or to restore their former happiness. It came as no surprise to learn that the Chamberlains’ marriage fell apart; and the children suffered from various problems of their own. These factors were inevitable consequences of what had occurred to these persons over a period in excess of a decade. I would like to think that similar circumstances could never happen again. But only eternal vigilance will achieve that.